BASHIR and 2 others Versus THE STATE
This matter concerns a bail application filed by three applicants facing trial for an offense under Section 17(3) of the Offences against Property (Enforcement of Hudood) Ordinance, 1979. The prosecution alleges that the applicants, armed with weapons, assaulted the complainant's nephew and forcibly took cattle. The applicants were apprehended by the complainant party shortly after the incident, and both the weapons and the stolen property were recovered and produced at the police station. The applicants argued that it was implausible for unarmed individuals to capture armed assailants and contended that the case, at most, fell under Section 411 of the Pakistan Penal Code 1860. The Court rejected these arguments, noting the direct allegations in the F.I.R. and the recovery of the accused with the stolen property. Applying the principle under Article 129, Illustration (a) of the Qanun-e-Shahadat Order 1984, the Court held that a prima facie case existed. Consequently, the bail application was dismissed, and the trial court was directed to expedite the proceedings and examine material witnesses promptly.
- Does the recovery of accused persons with stolen property immediately after an incident create a prima facie case for the purpose of bail?
- Can a court grant bail when the accused are named in the F.I.R. and were apprehended at the scene with the stolen property?
- Is the presumption under Article 129, Illustration (a) of the Qanun-e-Shahadat Order 1984 applicable to bail proceedings involving robbery?
- Section 17(3), Offences against Property (Enforcement of Hudood) Ordinance 1979
- Section 411, Pakistan Penal Code 1860
- Article 129, Qanun-e-Shahadat Order 1984
ORDER
The applicants have been sent up for trial for an offence punishable under section 17(3), Offences against Property (Enforcement of Hudood) Ordinance, 1979.
2. As alleged in the F.I.R. complainant's nephew Ajabdin was grazing the cattle ,when applicants accompanied by one Abdullah and three unidentified persons armed with weapons caused fist blows and kicks to Ajabuddin and took away cows and buffalos. He informed complainant party who chased the culprits. One of the culprits, Bashir tumbled down and was caught hold of and the gun was snatched from him. Applicant Gul Khan and Gaman were also apprehended and hatchet and Lathi were secured from their possession. Abdullah and unidentified persons managed their escape good and took away two cows. The complainant party succeeded in retrieving two buffalos and one cow. All this happened at 4 p.m. on 1‑2‑2003 and the culprits, their arms and stolen property were produced at the Police Station Kandhkot at 5‑30 p.m. on the same day:
3. I have heard Mr. Nadeem Tonyo, learned counsel for applicants, Mr. Mushtaq Ahmed Kourejo, learned State Counsel and Mr. Muhammad Iqbal Mahar, learned counsel for complainant.
4. Mr. Tonyo submitted that it is not commonly possible to believe that five unarmed persons would catch hold of three armed men. Further relying on Nawab Khan v. State 1986 PCr.LJ 2854 and Rab Nawaz v. State 1988 PCr.LJ 1269, he submitted that the case would at the hest fall within the ambit of section 411, P. P. C.
5. Mr. Kourejo and Mr. Mahar opposed the bail on the ground that the complainant and four witnesses had rushed to the scene and were able to capture the accused, their evidence cannot be discarded at this stage.
6. There is direct allegation that the applicants snatched the cattle on the point of arms, after giving blows to Ajabuddin nephew of the complainant and son after dacoity they were caught hold of with the property robbed. Prima facie, the case can be considered within the meaning of Article 129 Illustration (a) of Qanun‑e‑Shahadat. It is quite premature to hold that the culprits were simply taking away the stolen property. The names of the applicants are mentioned in the F.I.R: and they were produced at the police station alongwith their arms and the stolen property. The bail plea as such cannot be sustained. However, while dismissing the application, the trial Court is directed to proceed with the case expeditiously and examine the material witnesses as early as possible.
H.B.T./B‑7/K Bail application dismissed.